LRD Booklets January 2019

Case law at work - 15th edition

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 [page 4] (260 words)

This is the 15th edition of Case Law at Work, the LRD’s key source of information on recent employment law cases. It contains clear summaries and ...
Open access

Chapter 1

1. The employment law system
 [ch 1: pages 5-6] (839 words)

Before issuing any tribunal claim, a claimant must first contact Acas and consider whether to try to conciliate (that is, settle) the claim with the ...
Subscribers only

Legal privilege can’t be used to conceal advice on escaping claims for discrimination 
 [ch 1: pages 6-8] (747 words)
X v Y Limited [2018] UKEAT/0261/17/JOJ

Evidence of pre-termination discussions can be disclosed to tribunal if effective date of termination (EDT) is disputed 

 [ch 1: pages 8-9] (771 words)
Basra v BJSS Ltd [2018] UKEAT/0090/17

Claim could not be amended despite being in time 

 [ch 1: pages 10-11] (549 words)
Patka v British Broadcasting Corporation & Anor [2018] UKEAT/0190/17

Wrong advice by Acas Helpline meant it was ‘not reasonably practicable’ to file unfair dismissal claim in time 
 [ch 1: pages 11-12] (556 words)
DHL Supply Chain Ltd v Fazackerley [2018] UKEAT /0019/18

Claim deadline missed by one day due to strict postal rules 
 [ch 1: pages 12-13] (639 words)
Miah v Axis Security Services Limited [2018] UKEAT/2090/17/LA

No time extension for appeal ‘lost in the post’

 [ch 1: pages 13-14] (391 words)
Haydar v Pennine Acute NHS Trust [2018] EWCA Civ 1435

Judgment was ‘sent to the parties’ despite tribunal using wrong address
 [ch 1: pages 14-15] (649 words)
Rana v London Borough of Ealing [2018] EWCA Civ 2074 

Chapter 2

2. Categories of worker — employment status 
 [ch 2: pages 16-17] (583 words)

Most statutory employment rights depend on someone’s “employment status”. Key minimum employment rights such as the national minimum wage, ...
Subscribers only

Employers cannot compensate agency workers for worse terms by paying them higher wages 

 [ch 2: pages 17-19] (985 words)
Kocur v Angard Staffing Solutions Ltd & Anor [2018] UKEAT/0181/17

Addison Lee cycle courier a ‘worker’ not self-employed

 [ch 2: pages 19-20] (728 words)
Addison Lee Ltd v Gascoigne [2018] UKEAT/0289/17

Zero hours worker could use full-time worker as comparator

 [ch 2: pages 21-22] (597 words)
Roddis v Sheffield Hallam University [2018] UKEAT 0299/17/DM

Zero hours contract worker was protected by Agency Worker Regulations
 [ch 2: pages 22-23] (762 words)
Brooknight Guarding Limited v Matei [2018] UKEAT/0309/17/LA

Supreme Court confirms ‘self-employed’ plumber is worker

 [ch 2: pages 24-26] (1,063 words)
Pimlico Plumbers Limited v Smith [2018] UKSC 29

Unite tackles abuse of umbrella companies in the employment tribunal 

 [ch 2: pages 26-27] (749 words)
Blakely v (1) On Site Recruitment Solutions Limited and (2) Heritage Solutions City Limited [2018] UKEAT/0134/17/DA 

Chapter 3

3. The employment contract 
 [ch 3: page 28] (359 words)

The employment contract sets out the terms and conditions under which work is to be done and paid for.
Once an employer has offered a job and the ...
Subscribers only

Tribunal can interpret contractual terms in wage claims

 [ch 3: pages 28-30] (758 words)
Agarwal v Cardiff University; Tyne & Wear Passenger Transport Executive t/a Nexus v Anderson [2018] EWCA Civ 2084

Abused domestic worker could enforce employment contract despite having no right to work
 [ch 3: pages 30-32] (787 words)
Okedina v Chikale UKEAT/0152/17/RN UKEAT/0153/17

Zero hours contract worker entitled to normal wages while suspended
 [ch 3: pages 32-33] (731 words)
Rice Shack Limited v Obi [2018] UKEAT/0240/17/DM

Court of Appeal clarifies law on “last straw” resignations and constructive dismissal
 [ch 3: pages 34-35] (729 words)
Kaur v Leeds Teaching Hospitals NHS Trust [2018] EWCA Civ 978

Staff had not agreed to variation of contract by continuing to work [ch 3: pages 35-37] (837 words)
Abrahall & Ors v Nottingham City Council & Anor [2018] EWCA Civ 796

Chapter 4

4. Pay and conditions 
 [ch 4: page 38] (278 words)

This Chapter highlights the key rulings in 2018 concerning pay and conditions, including the national minimum wage, holiday pay and rest ...
Subscribers only

EU court rules on right to carry over pay for untaken leave

 [ch 4: pages 38-40] (794 words)
King v The Sash Window Workshop Ltd [2017] Case C-214/16 CJEU

Regular voluntary overtime included in holiday pay

 [ch 4: pages 40-41] (702 words)
Flowers & Ors v East of England Ambulance Trust [2018] UKEAT/0235/17/JOJ

Court ruling on national minimum wage sleep-in shift a ‘huge mistake’

 [ch 4: pages 42-43] (964 words)
Royal Mencap Society v Tomlinson-Blake [2018] EWCA Civ 1641

Twenty-minute rest break cannot be made up of several shorter breaks 
 [ch 4: page 44] (377 words)
Crawford v Network Rail Infrastructure Limited [2017] UKEAT/0316/16/BA

Holiday pay for workers without “normal hours” must be based on 12-week average pay 
 [ch 4: pages 45-46] (498 words)
Brazel v The Harpur Trust [2018] UKEAT/0102/17/LA

Injury to feelings compensation available for detriment for asserting working time rights 

 [ch 4: pages 46-47] (597 words)
South Yorkshire Fire & Rescue Service v Mansell [2018] UKEAT 0151/17/3001

Chapter 5

5. Unions, collective organisation and industrial action 
 [ch 5: page 48] (361 words)

This Chapter sets out the key rulings delivered in 2018 that concern collective rights. It includes important new rulings enforcing the law against ...
Subscribers only

Unlawful inducement to circumvent pay negotiations by making offer direct to members 
 [ch 5: pages 48-50] (658 words)
Kostal UK Limited v Dunkley & Others [2017] EAT UKEAT/0108/17/RN

Confidential union/member correspondence not disclosable unless necessary to resolve a specific disputed issue in the case 

 [ch 5: pages 50-51] (603 words)
Dhanda v TSB Bank Plc UKEAT/0294/17

Rep unfairly dismissed over use of confidential information

 [ch 5: pages 51-53] (968 words)
Morris v Metrolink RATP DEV Ltd [2018] EWCA Civ 1358

Victory for pharmacists’ union in long-running recognition battle with Boots

 [ch 5: pages 53-56] (1,363 words)
PDAU v Boots Management Services Limited Case No. TURI/1062/2018 and others 

IWGB pursues test case over statutory recognition for outsourced workers 
 [ch 5: pages 56-57] (514 words)
Independent Workers Union of Great Britain v University of London Case Number [2017] TURI/1027 1 January 2018

Information and consultation regulations apply to Acas

 [ch 5: pages 57-58] (445 words)
Advisory Conciliation and Arbitration Service (ACAS) v Public And Commercial Services Union (PCS) [2018] UKEAT/0160/17/RN

Chapter 6

6. Discrimination
 [ch 6: pages 59-60] (481 words)

Discrimination law is found in the Equality Act 2010 (EA10). The EA10 lists nine protected characteristics: age; disability; gender reassignment; ...
Subscribers only

Government transitional pension arrangements under challenge as discriminatory 
 [ch 6: pages 60-62] (772 words)
Sargeant and Ors v London Fire and Emergency Planning Authority [2018] UKEAT/0016/17/LA
; Lord Chancellor and Ministry of Justice v McCloud & Mostyn [2018] EAT/0071/17/LA

Cancers are a disability even if they are non-invasive and unlikely to get worse 
 [ch 6: pages 62-63] (490 words)
Lofty v Hamis (t/a First Café) [2018] UKEAT/0177/17

Police force committed perceived disability discrimination by mistakenly assuming a health condition was a progressive disability

 [ch 6: pages 63-64] (675 words)
The Chief Constable of Norfolk v Coffey UKEAT/0260/16

Employer can take account of views of occupational health specialists when determining if someone has a disability

 [ch 6: pages 65-66] (726 words)
Donelien v Liberata UK Ltd [2018] EWCA Civ 129

Email citing ‘health condition’ not enough to prove disability

 [ch 6: pages 66-68] (844 words)
Francis Mutombo-Mpania v Angard Staffing Solutions Limited [2018] UKEATS/0002/18/JW

Claim for discrimination arising from disability can succeed although employer does not know about link to disability 

 [ch 6: pages 68-70] (964 words)
City of York Council v Grosset [2018] EWCA Civ 1105

Long hours culture can be a provision, criterion or practice triggering duty to make reasonable adjustments 

 [ch 6: pages 70-72] (656 words)
United First Partners Research v Carreras 2018 EWCA Civ 323

GP Practice should have considered part-time option before dismissing disabled employee

 [ch 6: pages 72-73] (665 words)
Ali v Dr Torrosian & Others [2018] UKEAT/0029/18/JOJ

Poor handling of early retirement request by Ministry of Justice was not discrimination 

 [ch 6: pages 73-75] (704 words)
Dunn v (1) Secretary of State for Justice; and (2) HM Inspectorate of Prisons [2018] EWCA Civ 1998

Equal pay claim not affected by comparators’ change of roles

 [ch 6: pages 75-76] (558 words)
Reading Borough Council v James & Ors [2018] UKEAT 0222_17

No direct discrimination in failing to pay enhanced Shared Parental Leave pay to men despite paying enhanced maternity pay to women 

 [ch 6: pages 76-77] (572 words)
Capita Customer Management Ltd v Ali [2018] UKEAT 0161/17

Tribunal to rule on whether paying less to employees taking statutory shared parental leave is indirectly sex discriminatory 
 [ch 6: pages 78-79] (847 words)
Hextall v Leicestershire Police [2018] UKEAT 0139/1705

Context matters in claims for harassment

 [ch 6: pages 79-80] (395 words)
Bakkali v Greater Manchester Buses (South) Ltd (t/a Stage Coach Manchester) UKEAT/0176/17

‘Bad faith’ in a victimisation claim simply means dishonesty

 [ch 6: pages 80-82] (714 words)
Saad v Southampton University Hospital NHS Trust [2018] UKEAT/0276/17/JOJ

Instigating a disciplinary was the start of continuing discriminatory conduct, not a one-off act

 [ch 6: pages 82-83] (593 words)
Hale v Brighton and Sussex University Hospitals NHS Trust UKEAT/0342/16/LA

Barclays can be held vicariously liable for historic sexual assaults

 [ch 6: pages 84-85] (710 words)
Barclays Bank PLC v Various Claimants [2018] EWCA Civ 1670

Chapter 7

7. Dismissal
 [ch 7: pages 86-87] (456 words)

Employees dismissed unfairly can go to a tribunal if they have been working for at least two years. Some specific types of dismissal do not require ...
Subscribers only

Dismissal vanishes automatically on successful appeal
 [ch 7: pages 87-88] (767 words)
Patel v Folkestone Nursing Home limited [2018] EWCA Civ 1843

Internal transfer letter not a resignation 
 [ch 7: pages 88-90] (657 words)
East Kent Hospital University NHS Foundation Trust v Levy [2018] UKEAT/0232/17/LA

No strict rule that it is always unfair to dismiss for less than gross misconduct without a warning
 [ch 7: pages 90-92] (809 words)
Quintiles Commercial UK Ltd v Barongo [2018] UKEAT/0255/17/JOJ

Series of acts of misconduct can justify summary dismissal

 [ch 7: pages 92-93] (746 words)
Mbubaegbu v Homerton University Hospital NHS Foundation Trust (Rev 1) [2018] UKEAT 0218/17/1805

Failure to offer appeal in right-to-work case unfair 
 [ch 7: pages 93-95] (707 words)
Afzal v East London Pizza Limited t/a Dominos Pizza [2018] UKEAT/0265/17/DA

Dismissal after failure to offer fixed-term employee alternative post was unfair

 [ch 7: pages 95-96] (725 words)
Royal Surrey County NHS Foundation Trust v Drzymala UKEAT/0063/17

No obligation to review decision to dismiss after learning of pregnancy 
 [ch 7: pages 97-98] (790 words)
Really Easy Car Credit Ltd v Thompson UKEAT/0197/17

Employers cannot rely on ‘illegality’ as fair reason for dismissal where employee has legal right to work in the UK but cannot prove it

 [ch 7: pages 99-100] (688 words)
Baker v Abellio London Ltd [2017] UKEAT/0250/16

Dismissal for some other substantial reason was fair despite no meeting
 [ch 7: pages 100-102] (757 words)
Hawkes v Ausin Group (UK) Limited [2018] UKEAT/0070/18/BA

Only decision-maker’s state of mind is relevant to dismissal

 [ch 7: pages 102-104] (885 words)
Royal Mail Ltd v Jhuti 2017 EWCA Civ 1632

Disclosure driven purely by self-interest is not protected by whistleblowing law

 [ch 7: pages 104-105] (446 words)
Parsons v Airplus International Ltd [2018] UKEAT/0111/17

Pension contributions count in calculation of ‘a week’s pay’

 [ch 7: pages 105-106] (375 words)
University Of Sunderland v Drossou [2018] UKEAT/0341/16/RN

Head teacher fairly dismissed for failing to reveal personal relationship

 [ch 7: pages 106-107] (730 words)
Reilly v Sandwell Metropolitan Borough Council [2018] UKSC 16

Written notice of dismissal only valid from date it was read

 [ch 7: pages 107-109] (870 words)
Newcastle upon Tyne Hospitals NHS Foundation Trust v Haywood [2018] UKSC 22

Chapter 8

8. Redundancy 
 [ch 8: page 110] (178 words)

A redundancy situation exists where an employer closes or intends to close the workplace or reduce the number of employees doing a particular kind of ...
Subscribers only

Possible contract breach by council when it failed to offer chance to apply for enhanced voluntary redundancy
 [ch 8: pages 110-112] (839 words)
Lynam & Anor v Birmingham City Council UKEAT/0072/17/JOJ

Kids charity failed on redundancy collective consultation obligations

 [ch 8: pages 112-114] (861 words)
Keeping Kids Company v Smith & Ors [2018] UKEAT 005/17

Employer should have considered ‘bumping’ 

 [ch 8: pages 114-115] (643 words)
Mirab v Mentor Graphics (UK) Ltd [2018] UKEAT 0172/17

Chapter 9

9. Business transfers and contracting out
 [ch 9: pages 116] (171 words)

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) are intended to protect the rights of employees on the transfer of ...
Subscribers only

There was a TUPE transfer to a parent company when it took over control from subsidiary of all aspects of day-to-day running of business 

 [ch 9: pages 116-118] (787 words)
Guvera Ltd v Butler & Ors UKEAT/0265/16

TUPE inadequate to protect employees when services are ‘fragmented’ on a retendering 
 [ch 9: pages 118-120] (866 words)
London Care Ltd v Henry and others UKEAT/0219/17; Carewatch Care Services Ltd v Henry and others UKEAT/0220/17

Withdrawal of travel time allowance was not a breach of TUPE 
 [ch 9: pages 120-121] (653 words)
Tabberer & Others v Mears Limited [2018] UKEAT/0064/17/JOJ 

PCT’s public health team engaged in an ‘economic activity’ and so covered by TUPE
 [ch 9: pages 121-123] (736 words)
Nicholls v Croydon LBC and Hacker v Croydon LBC [2018] UKEAT/0033 and 0004/18/RN 

Chapter 10

10. Surveillance and monitoring 
 [ch 10: page 124] (138 words)

With the spread of digitisation, privacy laws are of growing importance in the workplace. As well as the human right to privacy under Article 11 of ...
Subscribers only

Supermarket was liable for ‘serious’ data leak

 [ch 10: pages 124-125] (819 words)
WM Morrison Supermarkets PLC v Various Claimants [2018] EWCA Civ 2339